Jon Comlay, Author at Parklane Plowden

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Clarifying a conclusion of unlawful killing: R (Glaister & Carr) v HM Assistant Coroner for North Wales [2025] EWHC 167 (Admin)

Benjamin David Leonard was only aged 16 when he fell to his death from the Great Orme, North Wales, while on an Explorer Scout weekend away in August 2018. The weekend away was supervised by volunteer scout leaders, including the Claimants in this judicial review claim, Mr Glaister (Explorer Scout Leader) and Ms Carr (Assistant Explorer Scout Leader).  On a walk up the Great Orme, the group became separated, with Ms Carr leading and assuming Mr Glaister would round up Benjamin and two other scouts.  Mr Glaister did not see them at any stage. Ms Carr saw Benjamin at the top on the grassy hills. She did not ask him to re-join the group. There had been no risk assessment conducted for the activity. Benjamin, in the hope of making it down the mountain more swiftly, followed animal tracks to the cliff edge and fell, suffering a brain injury.  The inquest was not straightforward; it involved two failed attempts in 2020 and 2022. When it eventually proceeded, it involved ten interested parties (including Mr Glaister and Ms Carr), 32 hearing days, live evidence from 20 witnesses and even a hearing held on a Sunday.  Finally, in August 2024, the inquest ended with the jury recording a conclusion of “unlawful killing by the Explorer Scout Leader and Assistant Explorer Scout Leader contributed to by neglect of the Scout Association”.  Mr Glaister and Ms Carr brought claims by way of judicial review against the Assistant Coroner for North Wales culminating in this decision of the High Court.  The conclusion of unlawful killing  The case focussed around three of the six elements required for gross negligence manslaughter as outlined in R v Broughton [2020] EWCA Crim 1093 at paragraph 5:  <ul class="wp-block-list"> <li>Element (iii): establishes a threshold of “serious and obvious risk of death” at the time of breach. “An obvious risk is one that is present, clear, and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation”.</li> </ul>  <ul class="wp-block-list"> <li>Element (iv): it must have been reasonably foreseeable at the time of the breach of the duty, that the breach gave rise to a serious and obvious risk of death.</li> </ul>  <ul class="wp-block-list"> <li>Element (v): the breach of duty caused or made significant contribution to the death of the victim.</li> </ul>  Justice Fordham also considered R v Rose [2017] EWCA Crim 1168, which establishes thata “serious and obvious risk of death” must exist, and is to be assessed with respect to knowledge, at the time of the breach of duty. Therefore, information that the Claimants would have been aware, had they performed the duty that they breached, is excluded. Taking such information into account has been described as falling into “the Rose Trap”.  The Court also referred to R v Kuddus [2019] EWCA Crim 837 which clarifies that a foreseeable chance that risk of death might arise is not sufficient to establish a “serious and obvious risk of death”.  Serious and obvious risk of death does not require “imminence”  Both Claimants submitted that the only thing that gave rise to a foreseeable serious and obvious risk of death, was the action of Benjamin going near to the steep cliffs. They argued that prior to that point, there could be nothing more than a Kuddus chance of risk. As there was no evidence that either Claimant had been aware that Benjamin was near to the cliff at a time they could have intervened, they argued that unlawful killing could not reasonably be left to the jury.  Justice Fordham did not agree that a “serious and obvious risk of death” could only arise when Benjamin was near to the cliffs. He determined that the Claimants’ analysis incorrectly introduced imminence into the threshold of “obvious and serious risk of death”. Justice Fordham did not agree that imminence was already required by case law, and nor could he see the logic of introducing it.  Obvious information avoids the Rose Trap  The Claimants also contended that the evidence could not support a finding by a properly directed jury of reasonable foreseeability of serious and obvious risk of death without falling into the Rose Trap.  In relation to Mr Glaister, the Court found that on a possible view of the facts, his conduct regarding planning and instruction as Scout Leader meant that a finding of unlawful killing could safely be left to the jury. Likewise, in relation to Ms Carr, the conclusion could safely be left to the jury based on her conduct when she saw Benjamin and the other scouts on the grassy tops prior to Benjamin’s fall.  Justice Fordham considered that it was not necessary to attribute them knowledge in respect of what would or would not have been known at the time of the breach of duty, because the dangers posed by the terrain of the Great Orme were obvious to them. Thus, the Rose Trap was avoided.  The question of anonymity on the Record of Inquest  Both Claimants sought to quash the wording of Section 4 ROI which identified them by their roles as “Explorer Scout Leader” and “Assistant Explorer Scout Leader”. They submitted that their identification was contrary to s.10(2) Criminal Justice Act 2009, which prohibits the determination of how, when and where the deceased came by their death being framed in a way that would determine, or appear to determine, any question of criminal or civil liability on the part of a named person.  Justice Fordham found against the Claimants in this respect. He considered that the Claimants’ arguments would require the Assistant Coroner, in some circumstances, to require deliberate ambiguity where the jury reaches a conclusion for unlawful killing. The Court concluded that the law does not mandate ambiguity but allows clarity.  Justice Fordham further emphasised that an inquest is not about apportioning blame, it is about full and fearless fact-finding. This means that there will be occasions that require the naming of identifiable individuals against whom a finding of unlawful killing relates, as in this case. Even when that does happen, the inquest has not determined criminal or civil liability against that person, and the public should be expected to understand that.  Conclusion  The Court’s consideration of the lawfulness of directions and summing up to the jury have not been addressed in this short summary. Suffice to say, although not perfect, Justice Fordham could not find any reasons that the Assistant Coroner’s directions or summing up to the jury were so deficient as to render the jury’s conclusions on unlawful killing unsafe.  For that reason, and the reasons outlined above, the claims for judicial review failed.  Judgment available <a href="https://www.judiciary.uk/wp-content/uploads/2025/01/Glaister-Carr-AC-2024-MAN-000186-Fordham-J-approved-judgment-for-hand-down-30.1.25-approved.pdf" target="_blank" rel="noreferrer noopener">here</a>.

Not “On a DOLS” – Court of Protection Clarifies Terminology

Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2)  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, looks at the judgment in Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2) and discusses the consequences of complacent terminology.  The full judgment (which merits reading in its entirety) can be found <a href="https://caselaw.nationalarchives.gov.uk/ewcop/t2/2024/76?court=ewcop" target="_blank" rel="noreferrer noopener">here</a>.  In Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2), the Court of Protection considered the care arrangements for an 18-year-old woman, Emma (“EM”), addressing issues of capacity, best interests, and the implications of terminology surrounding deprivation of liberty orders. The case also explored the Local Authority's handling of proceedings and compliance with court orders, resulting in an adverse costs order against the LA.  This article focuses only on this judgment in so far as it relates to terminology, however, the judgment serves as a key reminder to Local Authorities on the issue of compliance and should be a warning to all authorities that the Court of Protection can, and will, make adverse costs orders where necessary.   Background  Emma, an 18-year-old with autism and ADHD, presented with a history of severe self-harming behaviours and mental health crises. After escalating incidents of self-harm in early 2023, she was detained under Section 2 of the Mental Health Act 1983 and later transitioned to a care placement to address her complex needs. The placement involved 24-hour supervision, significant restrictions, and interventions for her safety.  Following Emma’s transition into adult care, her capacity to make decisions regarding her residence and care came under scrutiny. Proceedings were initiated in the High Court in August 2023 to authorise care plans under the inherent jurisdiction. These proceedings transitioned to the Court of Protection after Emma turned 18. Throughout the case, Emma expressed a desire for less restrictive care arrangements, though concerns about her fluctuating capacity and safety risks persisted.  The Local Authority sought to withdraw Court of Protection proceedings and discharge orders authorising Emma’s deprivation of liberty on the basis that her placement could continue without such authorisations. The Official Solicitor, acting as Emma’s litigation friend, raised concerns about the LA's compliance with previous court orders, its understanding of care planning, and its reliance on the term “on a DOLS.”  Emma’s psychiatrist emphasised her fluctuating capacity and the need for therapeutic care planning, noting Emma’s progress and her stated preference for fewer restrictions. However, inconsistencies in the LA’s approach to care planning and communication exacerbated delays and confusion.   The Law & Judgment  A key issue to the case was Emma’s capacity, or lack of. As noted by Emma’s psychiatrist, her capacity and ability to make relevant decisions fluctuates. Whilst this point, is not the crux of this article, or the ‘interesting’ element to have come out of the case, what the Court said on the point is of interest, noting that:  “It was not clear to the Court whether in fact EM was still in a crisis during which her capacity to make relevant decisions was absent, at least some of the time. In such circumstances the Court needs to understand the nature of the fluctuating capacity, what triggers it and what is the scope of the incapacity when triggered.”  The Court pointed out that the difficulties with such cases are well illustrated in Leicestershire County Council v P & NHS Leicester, Leicestershire & Rutland ICB [2024] EWCOP 53 (T3), a judgment which had not been reported at the time of the hearing in Emma’s case.  The Court approved the plan being sought, but Judge Burrows criticised the Local Authority for its misunderstanding on the legal framework with respects to deprivation of liberty cases. It was noted that, DoL or DoLs refers to the wording of Article 5 of the ECHR, as an acronym for “Deprivation of Liberty”. DOLS on the other hand refers to Schedule A1 of the Mental Capacity Act 2005, and is in reference to the Deprivation of Liberty Safeguards.  As such, as stated by the Judge:  “Emma is therefore subject to an order that authorises her deprivation of liberty, which could be called a DoL or DoLs order. She is not on a DOLS.”  On this, the Judge further explained that being deprived of one’s liberty needs to be authorised as part of a care plan. This can be pursuant to Schedule A1 (the DOLS) where a person aged over 18 is detained, or pursuant to ss.15 and 16 of the MCA where the person is under 18 or somewhere other than a hospital or care home.  The fact that Emma’s case was dealt with by way of the inherent jurisdiction meant that her liberty was deprived outside the statutory regime, thus meaning she was subject to a DoL order (again, not DOLS). The terminology is a key point, as Judge Burrows explained, the expression to be “on a dol”:  “…whilst perfectly legitimate abbreviations, must be understood properly and within that context. To be “on” or “under a dol” means to be subject to an order (or authorisation) approving and authorising a care plan which allows the carer to use restrictions that amount to a deprivation of liberty in the best interests of P. Clearly, the emphasis here is on the care plan itself and not the legal status of the restrictions that can be used.”  As a key point, the Court pointed out that:  “Unfortunately, when the Court authorises such a care plan that amounts to a “dol” it is seen as being mandatory, like the Court has imposed a prison sentence.  …  It is important to emphasise though that the care plan is King here”  It is Emma’s care plan, not the court’s authorisation, which determines the nature of her restrictions. If those involved in her care are able to devise a care plan which does not require a deprivation of liberty, then the court will authorise it. Similarly, if the care plan requires the possibility of a deprivation, this will be authorised, but it is not prescriptive of what must happen.  This led to confusion in Emma’s case. The Local Authority were under the impression that, the only way that Emma’s care plan could evolve such that she could move into the community or not be under such restrictions would be to “have the dols lifted”. As the Court put it:  “This is incorrect. If the LA devises a care plan whereby Emma can move to another place where she will not be deprived of her liberty, there will be no need for the Court to authorise her deprivation of liberty. If a plan is devised at her present placement that does not amount to a deprivation of Emma’s liberty, the Court will not need to authorise one.”  The Judge, clearly expressing concern around such applications, pointed out that, by virtue of focusing so heavily on whether a person is subject to a DoLs order or “on a dol”, that person is lost sight off, they are simply either a person who is on a dol or not. With many people subject to a deprivation of liberty thus feeling forgotten about and put out of sight until the issue of DoLs is raised.   Commentary  Whilst not appearing to many to be an issue worth a significant part of a judgment, the terminology involved in these decisions, as with most court orders, is key. In the first instance, when terminology is the focus, those people involved in the cases are almost pushed aside and the focus is shifted solely to black letter. It becomes easy for practitioners to forget that there are real people at the heart of these cases. In the second instance, when terminology becomes the centre of focus, it is easy to stray from the actual position in law, requiring such decisions to correct the steer.  Parallels can be drawn with numerous areas of law. Rather than being Adam, he is “sectioned under the Mental Health Act.” Rather than being Jane, she is “on a Care Order.” And whilst these statuses in law are vital when it comes down to legal issues, these statuses should not cloud the fact that these people are people, with their own unique experiences and perspectives and thoughts and feelings and unique requirements when it comes down to their care and support.  The court underscored the critical role of accurate terminology and understanding in deprivation of liberty cases. The court’s dissection of the term “on a DOLS” highlights the need for precision to avoid misconceptions that could undermine the dignity and autonomy of individuals subject to restrictive care plans. The term “on a DOLS”, outside of being legally incorrect, also oversimplifies the nuanced process of authorising and implementing care plans; at their heart, these authorisations are ordering the approval to deprive somebody of their liberty where this is necessary in implementing a care plan, the court are not ordering that a certain course of action must take place. To put it simply, just because the court has authorised a person be deprived of their liberty, it does not mean that person must be deprived of their liberty.  Misconceptions about DoL orders can lead to the false perception that individuals are “locked up” by court mandate, rather than this being an option through their care plans and the decision of all those involved in their care, developed in their best interests.  This judgment, while specific to Emma’s case, offers valuable guidance for practitioners, notably those working on the front lines with individuals who are subject to DoL orders, navigating the complexities of deprivation of liberty care planning within the MCA framework.

Symptoms of perimenopause found to have contributed to the death of Danielle Moore, lead singer of Crazy P

Bronia represented the family of Danielle Moore, musician and lead singer/front-person of Crazy P, who took her own life on 30 August 2024, age 52.  The inquest heard that prior to her death, Danielle began to experience low mood and dissociation after many years of good mental health. The coroner found that the symptoms of perimenopause, coupled with exhaustion, contributed to Danielle’s death.  Following the inquest, Danielle’s family released a statement calling for more awareness around the impact of the perimenopause and menopause on women’s mental health. Low mood, anxiety, mood swings and low self-esteem are recognised as common symptoms on the NHS website, but there is an increasing body of research suggesting that perimenopausal women (especially those with a history of mental health disorders) have a significantly higher risk of being diagnosed with depression compared to premenopausal women.  Bronia was instructed by <a href="https://www.linkedin.com/in/adele-whitfield-bbb04211/?originalSubdomain=uk" target="_blank" rel="noreferrer noopener">Adele Whitfield</a> of <a href="https://www.eatonsmith.co.uk/" target="_blank" rel="noreferrer noopener">Eaton Smith LLP</a>.  Bronia is appointed as an Assistant Coroner. She regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters, with particular expertise in mental health provision.  Press coverage:  <a href="https://www.bbc.co.uk/news/articles/cjr82r33x2eo" target="_blank" rel="noreferrer noopener">BBC</a>  <a href="https://www.nme.com/news/music/crazy-p-singer-danielle-moores-family-release-statement-after-suicide-inquest-the-image-of-human-kindness-and-generosity-of-spirit-3829695" target="_blank" rel="noreferrer noopener">NME</a>  <a href="https://www.hellomagazine.com/healthandbeauty/health-and-fitness/810336/depression-anxiety-or-perimenopause-differences/" target="_blank" rel="noreferrer noopener">Hello Magazine</a>

Settlement Success in Clinical Negligence Birth Injury

Leila Benyounes represented the Claimant who suffered a “never event” when a vaginal swab was retained following the birth of her first child. This caused multiple medical presentations, repeated infections, and the development of a severe injury.  Causation of the Claimant’s permanent symptoms resulting in an inability to return to work full-time was strongly contested by the Defendant.  Leila acted for the Claimant throughout this claim in respect of pleadings and conducting conferences with experts of different disciplines, and the case had been listed for trial of causation and quantum.  Settlement of a six-figure sum was eventually reached nine years after the negligence at a joint settlement meeting.  Leila was instructed by <a href="https://www.ramsdens.co.uk/team/rachel-sharp" target="_blank" rel="noreferrer noopener">Rachel Sharp</a> at Ramsdens Solicitors.  Leila is a specialist in the fields of Clinical Negligence and Inquests. She is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as a leading junior in Legal 500 and Chambers and Partners for Clinical Negligence and Inquests and Inquiries. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes" target="_blank" rel="noreferrer noopener">here</a>.

Critical Failure to Report a Gastric Band Slip Found to be Neglect

Sophie Watson represented the family of a 46-year-old woman who tragically died due to complications arising from a gastric band slip of which there was a missed opportunity for the hospital to identify and intervene.  In March 2024 the deceased attended the hospital after experiencing coffee ground vomit and significant abdominal pain. A CT scan and chest x-ray were both performed. The CT scan failed to identify the gastric band was in an abnormal lie despite it being visible on the imaging. The clinicians also did not identify the abnormal positioning upon reviewing the chest x-ray.  After two days as an inpatient the deceased collapsed. Despite CPR, the deceased tragically died.  The coroner found there was a critical failure to report that the deceased’s gastric band had slipped which contributed to the failure to refer the deceased to bariatric specialists. He found this failure represented neglect.  He found the failure to correctly report the gastric band slip on the CT scan caused or contributed to the deceased’s death.  The coroner issued a future prevention of death report to NHS England and the Royal College of Radiology given his concerns about the lack of knowledge of gastric band positioning by radiologists nationally.  Sophie was instructed by <a href="https://www.ramsdens.co.uk/team/rachel-sharp" target="_blank" rel="noreferrer noopener">Rachel Sharp</a> of Ramsdens Solicitors.  Media coverage can be read online here:  <a href="https://www.bbc.co.uk/news/articles/cvg45q8vpv8o" target="_blank" rel="noreferrer noopener">https://www.bbc.co.uk/news/articles/cvg45q8vpv8o</a>  <a href="https://uk.news.yahoo.com/woman-gastric-band-went-huddersfield-040000465.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAC5SuZdm2em5klorACr9KvSZ7_d9ng3agpTO1l3glRqW1-fcpazKVyQgK3kVU2aFHZJhjqtpuGdghd_Ocj70GNgJGPN3xrxjbQSQn2a1gSkWvj1hqndPd-Uj4cnHBotRa73ksJl4-N3vubRJdEgB0mvpgUU4Q1RurL9kybM6B2bf" target="_blank" rel="noreferrer noopener">https://uk.news.yahoo.com/woman-gastric-band-went-huddersfield-040000465.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAC5SuZdm2em5klorACr9KvSZ7_d9ng3agpTO1l3glRqW1-fcpazKVyQgK3kVU2aFHZJhjqtpuGdghd_Ocj70GNgJGPN3xrxjbQSQn2a1gSkWvj1hqndPd-Uj4cnHBotRa73ksJl4-N3vubRJdEgB0mvpgUU4Q1RurL9kybM6B2bf</a>  Sophie is a member of the Inquest and Inquiries team at Parklane Plowden Chambers and regularly acts on behalf of Interested Persons at Inquests. Sophie’s full profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">here</a>.

Sara Sharif Judges to be Named – Court of Appeal Delivers Stinging Judgment

Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, summarises the Court of Appeal judgment in Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42, the appeal concerning whether the historic judges involved in Sara Sharif’s family proceedings should be named.  The background to the matter concerns the tragic circumstances of the murder of Sara Sharif by her father and step-mother. Following her murder, several journalists sought information from the family proceedings and accordingly applied to the court for this disclosure.  A vast amount of material was disclosed, however, in making this order, Mr Justice Williams unilaterally made an order that the judges who had previously been involved in proceedings must not be named. This focused mainly on the Article 8 rights of the judges.  The decision was quickly appealed, and the decision, the first of its kind, was considered by the Court of Appeal who, in delivering a stinging and critical judgment, found that:  “…the judge had no jurisdiction to anonymise the historic judges either on 9 December 2024 or thereafter. He was wrong to do so…”  The Master of the Rolls further explained that:  “…He knew he had no evidence, and he could have realised that the judges would not wish to provide any evidence (as has happened). In short, the whole idea of anonymising the judges was, I have to say, misguided.”  The judgment is a significant moment in reaffirming the principle of open justice, particularly within the context of the family courts, still known for their overarching secrecy. The Court of Appeal’s decision emphasises the constitutional importance of transparency and accountability in judicial proceedings.  For the full summary and commentary, visit <a href="https://www.familylawweek.co.uk/judgments/tickle-anor-v-the-bbc-ors-2025-ewca-civ-42/" target="_blank" rel="noreferrer noopener">Family Law Week</a>.  The full judgment is available on <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2025/42.html" target="_blank" rel="noreferrer noopener">BAILII</a>.

Stuart Jamieson Helps Secure Settlement for Family of Man Who Died of Metastasised Colon Cancer

BST (deceased) v Leeds Teaching Hospitals NHS Trust  Stuart Jamieson, instructed by <a href="https://www.switalskis.com/profile/claire-garrity" target="_blank" rel="noreferrer noopener">Claire Garrity of Switalskis</a>, has helped secure a settlement for the Estate and dependants of a man that died from metastasised colon cancer. The six-figure settlement (subject to an anonymity order) was recently approved by HHJ Gargan, the Designated Civil Judge in Leeds.  The key disputes within the proceedings involved the failure to investigate the deceased upon GP referral by way of a colonoscopy to rule out a mucosal lesion, denied by the Defendant Trust as representing a breach of duty, and separately the effect of a failure to identify the Deceased’s colon cancer on a CT scan years later. The full causative effect of this later breach of duty was denied by the Trust. The Defendant denied that identification of the Deceased’s colon cancer at the time of the CT scan would have avoided the Deceased’s death, the disease subsequently metastasising to his liver and lungs. The Claimant’s case was that earlier identification from the CT scan would likely have avoided the Deceased’s death and his treatment requirements for a stoma, systemic chemotherapy and treatment for liver metastases.  The settlement on behalf of the Estate and dependants was approved in January 2025. The claim was contested over several years and with competing expert evidence in Oncology and Coloproctology.  Stuart Jamieson is a barrister specialising in Clinical Negligence and Personal Injury. Stuart is the Head of the Civil Team at Parklane Plowden.

Parklane Plowden Podcast – Getting the Best Out of Expert Evidence in Clinical Negligence Proceedings

Listen to Parklane Plowden’s latest PLP Podcast – Getting the best out of expert evidence in clinical negligence litigation.  Head of Parklane Plowden’s Civil team, personal injury and clinical negligence barrister <a href="https://www.parklaneplowden.co.uk/our-barristers/stuart-jamieson/" target="_blank" rel="noreferrer noopener">Stuart Jamieson</a> and head of the Clinical Negligence team, barrister <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/" target="_blank" rel="noreferrer noopener">Anna Data</a> discuss expert evidence in clinical negligence.  Experts and their evidence are central to clinical negligence litigation, so it is essential to take steps to maximise their value to support cases.  The two discuss strategies and principles and provide guidance on how legal practitioners can get the most out of experts throughout proceedings.  This encompasses all stages from medical expert witness selection and what to look out for at preliminary conferences, through to trial including the use of literature, expert reports, joint statements and overall court presentation.    Throughout the podcast, Stuart and Anna refer to individual cases where expert evidence was a key factor in the proceedings and analyse key lessons.  Listen to the podcast below.  Helpful resources and further reading:  Duties of an expert  <ul class="wp-block-list"> <li><a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35" target="_blank" rel="noreferrer noopener">CPR 35</a></li>  <li><a href="https://www.google.com/search?q=CCC+v+Sheffield+Teaching+Hospitals+NHSFT+%5B2023%5D&rlz=1C1GCEA_enGB1054GB1054&oq=CCC+v+Sheffield+Teaching+Hospitals+NHSFT+%5B2023%5D&gs_lcrp=EgZjaHJvbWUyBggAEEUYOTIICAEQABgWGB4yCggCEAAYogQYiQUyBwgDEAAY7wUyBwgEEAAY7wUyBwgFEAAY7wUyBwgGEAAY7wXSAQczODdqMGo3qAIAsAIA&sourceid=chrome&ie=UTF-8" target="_blank" rel="noreferrer noopener">CCC v Sheffield Teaching Hospitals NHSFT [2023]</a> </li>  <li><a href="https://www.casemine.com/judgement/uk/649f20468fa1977797a22413" target="_blank" rel="noreferrer noopener">Riley v Salford Royal NHS FT [2022]</a></li> </ul>  Approach taken by the expert  <ul class="wp-block-list"> <li><a href="https://www.parklaneplowden.co.uk/celine-martin-v-salford-royal-nhs-foundation-trust-the-question-of-double-recovery-in-care-claims-when-there-is-a-pre-existing-state-funded-care-package/" target="_blank" rel="noreferrer noopener">Celine Martin v Salford Royal NHS Foundation Trust</a></li>  <li><a href="https://www.casemine.com/judgement/uk/65720fb2cd29093de5347806#:~:text=Decision,were%20awarded%20to%20the%20Claimant." target="_blank" rel="noreferrer noopener">Parsons v Isle of Wight NHS Trust [2023]</a></li> </ul>  Use of literature  <ul class="wp-block-list"> <li><a href="https://www.casemine.com/judgement/uk/6494a422744f894966d01665" target="_blank" rel="noreferrer noopener">Snow v Royal United Hospitals Bath NHS Trust [2023] EWHC (KB)</a></li> </ul>  The expert report  <ul class="wp-block-list"> <li><a href="https://www.casemine.com/judgement/uk/64c7fff1b4b0e776d726a73e" target="_blank" rel="noreferrer noopener">Jayden Astley (by his father and litigation friend Craig Astley) v Lancashire Teaching Hospitals NHSFT [2023] EWHC 1921 (KB)</a></li> </ul>  The joint statement  <ul class="wp-block-list"> <li><a href="https://www.casemine.com/judgement/uk/5b2897ad2c94e06b9e1983fc" target="_blank" rel="noreferrer noopener">Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343</a></li>  <li><a href="https://www.lawgazette.co.uk/law/most-unsatisfactory-expert-evidence-under-fire-from-judge/5068984.article" target="_blank" rel="noreferrer noopener">Mayr v CMS Cameron McKenna Nabarro Olswang LLP</a></li>  <li><a href="https://www.civillitigationbrief.com/2022/03/10/experts-going-wrong-again-this-time-it-has-cost-someone-225000-the-work-turns-into-dust/" target="_blank" rel="noreferrer noopener">Patricia Andrews & Ors v Kronospan Limited [ 2022 ] EWHC 479 (QB)</a></li> </ul>  Trial  <ul class="wp-block-list"> <li><a href="https://www.casemine.com/judgement/uk/6576d91b52aae60ac079d19b" target="_blank" rel="noreferrer noopener">Beatty v Lewisham and Greenwich NHS Trust [2023]</a></li>  <li><a href="https://www.casemine.com/judgement/uk/64ee3c099887ba4f0b22f108" target="_blank" rel="noreferrer noopener">Scarcliffe v Brampton Valley Group Ltd (2023)</a></li> </ul>

Interim Relief: How Employers Can Reclaim the Narrative

<a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen/" target="_blank" rel="noreferrer noopener">Robert Allen</a>, employment and commercial barrister, considers the mechanism of interim relief, why dismissed employees should proceed with caution, and how employers can turn an application against them into a strategic asset.  Interim relief (IR) gives the tribunal the power to compel the employer to reinstate, re-engage or continue to pay a dismissed employee pending the outcome of a final hearing. Given the current pressures within the tribunal system and growing backlog, this interlocutory remedy has the potential to become increasingly valuable to claimants.  The statutory test  IR is only available to employees in limited circumstances. The right to apply is provided for by section 128 Employment Rights Act (ERA) 1996:  ‘An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and –  That the reason (or if more than one the principal reason) for the dismissal is one of those specified in –  Section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A or  Paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992,…  May apply to the tribunal for interim relief.’  For an employer, having (rightly or wrongly) decided to dismiss an employee, being required to maintain the terms of a contract for however long it takes for litigation to run its course<a id="_ftnref1" href="#_ftn1">[1]</a> is, on any measure, draconian. Consequently, the IR bar is set purposefully high. That is not altogether obvious, however. On the face of the wording of the statute, one may be deceived. Section 129 ERA 1996 provides:  ‘This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find the reason (or if more than one the principal reason) for the dismissal to be one of those specified…’  (Emphasis added)  My ‘likely’ is not necessarily as likely as yours. The statute offers little by way of assistance.  Guidance from caselaw  Caselaw has – to a degree – clarified matters. The word ‘likely’ is to be construed as meaning the employee has a ‘pretty good chance’ of success at the final hearing.<a id="_ftnref2" href="#_ftn2">[2]</a> But what does a ‘pretty good chance’ mean? According to Mr Justice Underhill, a ‘pretty good chance’ ostensibly means ‘a significantly higher degree of likelihood than just more likely than not.’<a id="_ftnref3" href="#_ftn3">[3]</a> The then President went on to state: ‘in this context ‘likely’ does not mean simply ‘more likely than not’ – that is at least 51% - but connotes a significantly higher degree of likelihood.’  In short, it’s no easy task to prove.  Application  By illustration, take one of the more common routes to IR: an automatic unfair dismissal by operation of section 103A ERA 1996. In such a case, IR can only be ordered where the tribunal is satisfied that it is likely on hearing the evidence at a final hearing that the reason (or principal reason) for the dismissal was that the employee made a protected disclosure. It falls to the applicant to establish the necessary level of likelihood in relation to each and every distinct element of the claim.<a id="_ftnref4" href="#_ftn4">[4]</a>  So, to succeed, the applicant must establish that it is likely that the tribunal at a final hearing would find that:  <ol class="wp-block-list"> <li>they made a disclosure;</li>  <li>they believed that the disclosure tended to show one or more of the matters listed in section 43B(1) ERA 1996;</li>  <li>that belief was reasonable;</li>  <li>the disclosure was made in the public interest;</li>  <li>the disclosure was the sole or principal cause of dismissal;</li> </ol>  As for that final limb, in the absence of qualifying service on the part of the employee, it falls to them to prove the causative link to dismissal.<a id="_ftnref5" href="#_ftn5">[5]</a> Only employees with two or more years of continuous service shift the burden to their employer to show they were not dismissed with the sole or principal reason being the disclosure.  Procedure  Pre-hearing  IR applications are exempt from the usual requirement<a id="_ftnref6" href="#_ftn6">[6]</a> to conciliate before passing go. Time limits are tight: claimants must apply within seven days of the date of dismissal and there is no latitude for an extension.<a id="_ftnref7" href="#_ftn7">[7]</a> A hearing will be listed promptly thereafter. The issue shall be determined ‘as soon as is practicable’.<a id="_ftnref8" href="#_ftn8">[8]</a> Employers will have at least seven days’ notice of a hearing, but seldom more.<a id="_ftnref9" href="#_ftn9">[9]</a>  Though an IR hearing will be a matter of days away by the time an employer is put on notice, parties should nonetheless attempt to cooperate to agree bundle contents. The bundle should be restricted to what is necessary; less is more. A bundle running to hundreds of pages is rarely indicative of a successful IR application. Parties can, and should, make appropriate use of witness statements. And the value of a concise skeleton argument drawing it all together cannot be underestimated.  At the hearing  Even when statements have been provided, expect the judge to hear submissions alone. Rule 94<a id="_ftnref10" href="#_ftn10">[10]</a> provides that the tribunal ‘must not hear oral evidence unless it directs otherwise’. Any request to hear oral evidence would have to be founded on an exceptional reason. If you are seeking the tribunal to hear evidence, be ready to justify why this irregular step is necessary in the circumstances. Is there a point that can only be made orally?  If so, why has it not been set out in a witness statement? If there is a point of challenge, why is it just to challenge it now? If you are resisting such a request made by the other side, emphasise that the task at an IR hearing is to take each party’s case at its evidential height. Moreover, point to the overriding objective<a id="_ftnref11" href="#_ftn11">[11]</a> in light of the risk that hearing evidence at an interlocutory stage may well prejudice evidence at a final hearing.  Tactical considerations  Applying - eager enthusiasm may prove ephemeral  No claimant presents an ET1 without some initial level of confidence in the outcome. But when pursuing IR, such early confidence must be particularly well-placed. IR, for all it can subject the respondent to early pressure (and cost), has the potential to backfire.  First, there is no disclosure process. Not only do employees have to prove each element of the legal test to the required standard; they must do so based upon the documentation they have available to them at the time of applying. Whereas many cases can evolve based upon disclosure identifying key evidential vulnerabilities, IR will turn simply upon what the employee is able to point to from their own records, combined with anything the employer elects to cite for themselves (and the latter is unlikely to be helpful). Even taking the very first stage of a section 103A ERA 1996 dismissal - the employee will need to be ready to point to clear evidence of the precise circumstances of the disclosure they purport to have made. This can be far from straightforward, even with disclosure.  Second, whilst it may be tempting to put early pressure on the employer by making them face an IR application, it must be borne in mind that if IR is successfully resisted, it could be followed swiftly by an application on the employer’s part for costs.  Responding – turning an obstacle into an asset  Whilst facing an application for interim relief can seem daunting, requiring prompt tribunal attendance and early incurrence of costs, it can also present an opportunity for the respondent to make early headway in turning the momentum of the litigation in their favour.  The key to defeating IR applications is to properly apply the test. Limb by limb, submissions can be raised to demonstrate why the applicant does not come up to proof. The bar is high, and each limb presents its own evidential obstacles. In approaching this exercise, the respondent has the tactical benefit of using contemporaneous documents which favour their position, without having to disclose that which could be more damaging.  Where an IR application is successfully opposed, various opportunities present themselves. Principally, the employer has shifted the momentum in their favour. The IR hearing provides an initial forum for submissions explaining why the claim is not as strong as was believed by the other side. If a judge agrees with those submissions, confidence in the prospects of the claim is inevitably diminished – providing scope for settlement or withdrawal.  Having seen off IR, an employer can, in certain cases, use the hearing to go further. For one, the decision to pursue IR at all may have been unreasonable in the circumstances, such that the door is open to pursue costs. If, for instance, an employer is able to justify why the application fails to come up to proof by some margin on each and every aspect, the tribunal may be minded to make a costs order – particularly so if it is persuaded the tribunal’s time has been wasted in the process. Equally, provided IR was sought within a claim that had been presented following conciliation<a id="_ftnref12" href="#_ftn12">[12]</a>, there would be nothing stopping the respondent from applying for a deposit order at the hearing if the evidence tended to suggest its prospects were sufficiently low.  Summary  Dismissed employees should proceed with care when weighing up the benefits and risks of IR. After all, a prepared employer could utilise an application against them for their own benefit, demonstrating unforeseen weaknesses in the claim and pursuing costs for the tactical misstep. ‘As the ancient Romans said, festina lente.’<a id="_ftnref13" href="#_ftn13">[13]</a>  Robert was recently instructed to respond to an interim relief application. Having successfully resisted it; he went on to obtain a costs order in favour of his client. If you wish to instruct a member of our employment team to help navigate an interim relief application, please contact our clerking team.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> A period which is increasingly measured in years rather than months  <a href="#_ftnref2" id="_ftn2">[2]</a> Taplin v. C Shippam [1978] IRLR 450 EAT  <a href="#_ftnref3" id="_ftn3">[3]</a> Ministry of Justice v. Sarfraz [2011] IRLR 562 EAT  <a id="_ftn4" href="#_ftnref4">[4]</a> Hancock v. Ter-Berg [2020] ICR 570  <a href="#_ftnref5" id="_ftn5">[5]</a> Smith v. Hayle Town Council [1978] ICR 996, CA  <a href="#_ftnref6" id="_ftn6">[6]</a> Under s.18A Employment Tribunals Act 1996  <a href="#_ftnref7" id="_ftn7">[7]</a> See s.128 (2) ERA 1996 and s.161 (2) Trade Union and Labour Relations (Consolidation) Act (TULR(C)A) 1992  <a href="#_ftnref8" id="_ftn8">[8]</a> S.128 (3) ERA 1996 and s.162 (1) TULR(C)A 1992  <a href="#_ftnref9" id="_ftn9">[9]</a> S.128 (4) and s.162 (2) ibid  <a href="#_ftnref10" id="_ftn10">[10]</a> Employment Tribunal Procedure Rules 2024, SI 2024/1155  <a href="#_ftnref11" id="_ftn11">[11]</a> Now found at Rule 3, ibid  <a href="#_ftnref12" id="_ftn12">[12]</a> This would be rare, given the narrow time limits and IR’s exemption from the early conciliation requirement  <a href="#_ftnref13" id="_ftn13">[13]</a> In the words of Iolanthe’s Lord Chancellor.

International Adoption – PLWG Best Practice: A Guide

Moving onto the fourth and penultimate article in my series covering the Public Law Working Group’s recommendations for best practice for adoption, we consider Chapter 4 of the PLWG report. This section addresses a more niche element of adoptions, those that are either international, or have an international element. As it stands, adoptions with an international element are extremely confusing, legislatively complex, and rife with delay. This chapter aims to provide background to the chaos involved in such adoptions and seeks to provide a comprehensive recommendation to move forward.  As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.  The terms ‘country’ and ‘state’ are used interchangeably in this article to refer to the Central Authority within that country whose role it is to deal with international adoptions.  Introduction  The Working Group’s remit was to consider not only reform to the procedure of international adoption, but any changes to the substantive law. As part of this, three key areas were identified:  <ol class="wp-block-list"> <li>Whether the statutory framework is sufficiently clear;</li>  <li>Whether there needs to be any changes to the statutory framework or procedure;</li>  <li>Whether good practice guidance would be of assistance.</li> </ol>  International Adoptions Generally  Broadly speaking, the PLWG define international adoptions as any incoming or outgoing adoption involving another country. These include adoptions under the 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (“the Hague Convention” or “the 1993 Convention”); adoptions governed by s.66 of the Adoption and Children Act 2002; adoptions under s.57 of the Family Law Act 1986 and common law adoptions; and domestic adoptions concerning overseas resident children.  It is not common in England and Wales for adoption orders to be made in favour of wider family, but where a placement is overseas, adoption may be necessary with respect to security of placement and immigration status. Similarly, there are children from outside the jurisdiction placed in the UK for adoption.  These cases are very complex and often lead to delay. The aim of the PLWG report in this area is to identify how improvements can be made to these harmful complexities.  Adoptions Pursuant to the 1993 Hague Convention  The UK is a Contracting State to the 1993 Convention, incorporated domestically via the Adoption (Intercountry Aspects) Act 1999 and the Adoptions with a Foreign Element Regulations 2005 (“the 2005 Regulations” or “the AFER 2005”). The 1993 Convention, at its core, is a partnership agreement between countries – the ‘origin’ country of the child is responsible for assessing the child, and the ‘receiving’ country is responsible for assessing the adopters. Neither state has a higher authority.  The Convention requires the receiving state to confirm that, upon adoption, the child will receive an immigration status such that they can permanently remain within the jurisdiction. Upon both confirming the match and an order being made, ALL Convention states MUST give effect to the order. There is no need to seek further orders within those states.  Whichever jurisdiction makes the adoption order (usually the ‘origin’ country, but there is nothing in law preventing the ‘receiving’ country making the order), must issue an Article 23 certificate confirming the Convention process has been followed (including dates of Article 17 agreements). This certificate (subject to the rare exception under Article 24 that the adoption is contrary to that state’s public policy) then binds every Convention state.  The 2005 Regulations are not a self-contained set of rules. They instead supplement the existing domestic framework contained within the Adoption and Children Act 2002 and the Adoption Agency Regulations 2005. International adoptions are also dealt with by way of further legislation (Children and Adoption Act 2006; Local Authority (Adoptions) (Miscellaneous Provisions) Regulations 2005). As such, those unfamiliar with the process, including professionals, can quickly become overwhelmed. The need to cross reference numerous regulations is complex, however, the legislative framework is very thorough and specialist lawyers are able to navigate this (though this requires Local Authorities to either have, or instruct, said specialist lawyers).  Outgoing Convention Adoptions  Local Authorities and the courts must consider whether a child who cannot be cared for by their birth family can be cared for by their wider family. This duty exists even if the wider family live overseas (the rationale being that it is better for a child to maintain family ties abroad, than to sever those ties domestically).  The PLWG did not look at the conduct of assessments of overseas family members, however, the Working Group did note that some authorities were reluctant to engage with the overseas assessment process in a timely manner. The Working Group note that authorities can seek support from Children and Families Across Borders and the Outbound Permanence Service (via Coram BAAF).  Many overseas placements do not involve adoption (these can often be affected under other orders such as Special Guardianship Orders), but some placements necessitate this, such necessity often coming from immigration status or SGO’s not being an order in the receiving state.  The Convention framework does not sit well with the typical adoption process in England and Wales, where children are removed due to abuse or neglect, or where there is nobody to exercise Parental Responsibility. Article 4 of the Convention specifically sets the groundwork that a Local Authority must obtain a placement order, Article 17 further set out requirements that the Central Authorities have agreed the adoption.  Children habitually resident in England and Wales are very rarely placed abroad for adoption unless it is to be with family members due to parental abuse or neglect. These children should be placed as soon as possible, but the Convention requirements, domestic legislation, and immigration laws make this very difficult, in some cases impossible.  The domestic legislation sets up somewhat of a paradox. Section 85 ACA 2002 makes it an offence to remove a child from the UK for the purposes of adoption, unless the prospective adopters have been granted parental responsibility via section 84. The issue, however, is that an application under section 84 cannot be made unless the court is satisfied that the child and the prospective adopter have had sufficient opportunities to be seen together – both countries additionally still need to comply with Articles 15, 16, and 17 of the Convention.  It is therefore in the child’s interests to obtain a Convention adoption order in the domestic courts. Re M (A Child) (Adoption: Placement Outside Jurisdiction) [2011] 2 WLR 1264 held that an offence would not be committed under s.85 in those circumstances as, any ‘visit’ the child made to the prospective adopters would not be for the purpose of adoption in that state, but to further a domestic Convention adoption.  Incoming Convention Adoptions  Incoming adoptions are not a frequent occurrence and, when these do happen, the burden on the domestic authorities is lesser given the assessment of the children is for the state of ordinary residence. The PLWG do however note that, adoption agencies do not always appreciate the complexities of Convention adoptions.  It is recommended that there is an open access hotline for social workers to obtain advice and information on any adoption with an international element, this is especially vital where the prospective adopters do not, or cannot, instruct lawyers. Procedural difficulties are often not noticed until several steps into proceedings, leading to significant delay and harm to the child and families.  Non-Convention Adoptions (Outgoing)  Children can only be taken out of the UK for adoption purposes via a section 84 order. This requires compliance with the 2005 Regulations. Section 84 is not available to those normally resident in the UK, it is designed solely for foreign nationals to assist in foreign adoption.  A s.84 order removes parental responsibility from all other people and grants this to the prospective adopters. It also authorises the removal of the child from the jurisdiction for the purposes of adoption. An order under s.84 is not, however, guaranteed to be recognised in the foreign court.  If the adoption is agency, the child must be placed with the prospective adopters for at least 10-weeks before an application under section 84 is issued.  If the child is looked after by a Local Authority, permission to remove from the jurisdiction can be sought under Schedule 2 of the Children Act 1989 prior to the granting of a placement order. Where a Local Authority is permitted to place a child for adoption, removal from the jurisdiction is then governed by section 28 ACA 2002. The position is not clear on whether s.28 can be used to allow the child to remain outside the jurisdiction, or to be placed for adoption whilst they remain outside the jurisdiction (there are no reported cases on this matter).  If the child is not looked after, it is difficult for the prospective adopters to comply with section 84, and s.42 where it is a non-agency adoption (this requires the child to be seen by the Local Authority). One possible way around this is that the Local Authority make a temporary home for the prospective adopters within the jurisdiction, for 10-weeks. It is clear this is not a viable position. It is therefore more straightforward for public law orders to be made and for a mirroring order to be obtained in the non-Convention state.  This is not always the right path for a child, and it may not overcome immigration issues in some states. But if it is, the proposed adopters may then seek to adopt at a later stage (having then complied with the s.84 requirements by virtue of an alternative order), this is uncontroversial if the state is a party to the Hague Convention Parental Responsibility and Protection of Children 1996 (not to be confused with the 1993 Convention which has been the subject of this Chapter) this is simple. If the state is not a party, it is liable to be extremely complicated. Though the cases where these issues transpire are very small.  Non-Convention Adoptions (Incoming)  Unlike outgoing non-Convention adoptions, there are a significant number of inbound adoptions under section 57 of the Family Law Act 1986. These cases are dealt with under the High Court’s inherent jurisdiction but can be heard by a High Court Judge sitting in the Family Court.  If the adoption is an overseas adoption pursuant to s.87 ACA 2002 (under the law of a country listed in the Adoption (Recognition of Overseas Adoptions) Order 2013), it will automatically be recognised in England and Wales and there is no need for proceedings to recognise the child’s status under English law (but this process does not confer British citizenship).  If an adoption order is made outside the jurisdiction and neither the Convention nor s.87 apply, the adoption may be recognised according to common law. Re Valentine’s Settlement [1965] Ch 831 set out four principles:  <ol class="wp-block-list"> <li>The adoptive parents have been domiciled in the foreign country at the time of the adoption;</li>  <li>The child was legally adopted according to the law of that jurisdiction;</li>  <li>The adoption has the same substantive characteristics and concept as an English adoption;</li>  <li>There must be no public policy reason refusing the recognition.</li> </ol>  Where these criteria are met, a person may apply under s.57 Family Law Act 1986 for recognition of the common law adoption.  Where the criteria in Re Valentine’s Settlement are not met, the courts may still recognise an adoption where to not do so would be a breach of the Article 8 rights of the children and prospective adopters (such cases being extremely rare, and extremely complex).  Dual applications for common law recognition and declarations of status requires the court to deal with different principles to each application and their domicile. Recognition will rely on the applicant’s domicile at the date of application, but a s.57 declaration will rely on the applicant’s domicile at or prior to the application.  Section 83 ACA 2002 makes it an offence to bring a child resident outside the UK into the UK for the purpose of adoption (a reverse of s.85) unless the Convention has been complied with. Whilst such adoptions are factually complex, the courts apply domestic law and assessment takes place within the jurisdiction. Where a person breaches s.83, the courts do not automatically refuse to make an adoption order.  Most applications to adopt from overseas are compliant with the 2005 Regulations, the prospective adopters will be registered and approved by the Department of Education. Upon returning to the UK with the child, there is further assessment and, following the child having lived with the prospective adopters, a further report to the court.  The biggest issue with such adoptions, despite a rigorous and complex process, including government departments, is that there is no recognition of the process at the visa stage when the child is finally ready to join their intended family. As noted by the Working Group:  “The apparent systemic failure to process visa applications promptly…to enable the child to enter the UK and begin their lives with their newly adopted parents…is lamentable.”  In some cases, years off delay can ensue, causing unnecessary emotional and financial hardship. The Working Group recommend that policy is amended to allows such children a special status with the Home Office at the visa stage. Whilst the usual checks should continue to apply, these should be fast-tracked, the delay otherwise being harmful to the welfare of the child.  Where adopters are domiciled in the UK but are habitually resident elsewhere, section 83 does not apply. If an adoption is made in a country not on the list in the 2013 Order, then it will not be recognised. A visa can be applied for on the basis of a period of care abroad, this may allow the child to settle in the  UK, but it does not alter the family law status – these parents may apply for a domestic adoption despite being habitually resident elsewhere.  In these cases, the child must have lived with the prospective adopters for at least three-years (unless this time is abridged by the court). At the point of being able to make the application, three years having passed often means there are difficulties tracing parents to obtain consent. The PLWG suggest considering whether allowing an application after 6 to 12 months would be more appropriate.  PLWG Conclusion  “The current system is just about working but the sheer complexity of it is illustrated by the number of statutes and statutory instruments which govern the process in England…”  With a possible combination of up to 18 pieces of legislation dealing with adoption (not including the international law), the complexity cannot be understated. Delays, misunderstanding, and mistakes are too common in adoptions with an international element.  The overarching recommendation of the Working Group is to review the legislative framework for international adoptions, such that this is contained within a single Act of Parliament, with regulations where necessary. Where regulations are required, these should be dealt with in a way to not require cross-referencing so as to leave the process more accessible to all involved.  The PLWG recognise that this is a major statutory task, and, outside of such reform (hopefully in the interim at most), recommend the following:  <ol class="wp-block-list"> <li>The Central Authority’s should update and expand the written guidance for intercountry adoptions to draw together the legislation into one place.</li>  <li>Consideration should be given to setting up a specialist referral unit.</li>  <li>The Central Authority’s should work closely with the Home Office where applications are relevant to immigration status decisions.</li>  <li>Section 84 ACA 2002 should be amended to make explicit that prospective adopters may be assessed overseas without committing an offence under s.85.</li>  <li>The regulations should be reviewed for inconsistencies (such as the paradox created by regulation 46, requiring a placement order and parental consent)</li>  <li>Regulation 47(1)(d) of the 2005 regulations should be amended to make clear this relates to the receiving state.</li>  <li>Practice Directions should be drafted to govern applications under Schedule 2 to the Children Act 1989 or applications under s.28 ACA 2002.</li>  <li>Cafcass Legal must be given sufficient resources to allow them to advise in such complex cases, often being the only lawyers involved.</li>  <li>The Home Office should create a fast-track process for visa approval where the applicant has fully complied with the regulations.</li>  <li>Section 42 should be amended to allow applications where adopters are habitually resident outside the UK to be made after six months.</li>  <li>Consideration should be given to amending the Children and Adoption Act 2006 to require mandatory review of countries on the banned list every three years.</li> </ol>  Conclusion  The PLWG's recommendations on international adoptions highlight the significant complexities and challenges within the current system. By addressing gaps in legislative clarity, procedural inefficiencies, and the burdens placed on families and professionals, these proposals aim to simplify the framework while safeguarding the welfare of children involved in cross-border adoptions. The overarching call for consolidating legislation into a single statutory framework is a bold but necessary step towards reducing delays and ensuring that all parties can navigate the process with greater ease and confidence.  The proposed amendments to legislation and practice have the potential to transform the landscape of international adoptions. Streamlining the statutory framework into one cohesive Act would resolve much of the confusion caused by the current patchwork of regulations. This would not only benefit legal professionals and social workers but also provide prospective adopters with a clearer understanding of their obligations and rights. Such simplification is particularly critical for cases involving vulnerable children, where unnecessary delays can have a profound and lasting impact on their stability and well-being.  The emphasis on inter-agency collaboration, particularly with the Home Office on immigration matters, is another pivotal recommendation. By fast-tracking visa applications for children who have complied with all adoption regulations, the welfare of these children can be prioritised, reducing emotional and financial strain on families. Furthermore, enabling overseas assessments under section 84 without triggering offences under section 85 would mitigate procedural roadblocks and allow children to transition into stable placements more swiftly.  Whilst the PLWG report does not consider this position within Chapter 4, the Working Group’s vision for "open" adoptions domestically, as advocated for in Chapter 1 of the report, introduces an interesting parallel for international adoptions. If adopted children can maintain ties to their birth families without severing connections entirely, the rationale for prioritising family placements abroad – despite logistical challenges – may shift. Courts might feel more confident in pursuing domestic solutions or alternative orders when open adoptions ensure that biological ties remain intact and meaningful. This evolution could reduce reliance on complex international placements, particularly in cases where immigration or procedural barriers make overseas placements less practical, but, at least currently, mandatory to pursue.  The PLWG's recommendations for international adoptions reflect a nuanced understanding of the countless challenges faced by children, families, and professionals. By fostering legislative coherence, enhancing inter-agency cooperation, and promoting a child-centred approach, these proposals have the potential to transform the adoption system. Ultimately, the recommendations align with the broader goal of creating a framework that balances the need for permanency and security with the preservation of identity and familial connections, ensuring the best outcomes for children involved in international adoptions.

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